Lawyer Defends Refusal To Represent Lying Client

September 3, 1988|By Maya Bell , Sentinel Miami Bureau

FORT LAUDERDALE — Attorney Ellis Rubin, jailed last year for refusing to defend a client who planned to lie on the stand, took part Friday in a case that may resolve the sticky dilemma of perjured testimony.

This time, the case was Rubin's own.

Charged by The Florida Bar with violating three rules of ethics, Rubin implored Broward Circuit Judge J. Cail Lee to clear his name. Not doing so, Rubin argued, will make jury trials ''gigantic lying contests'' instead of proceedings that search for the truth.

Lee, appointed by the Florida Supreme Court to referee the grievance proceeding, said he would issue an order within a month.

Rubin and Bar counsel Paul Gross agree that Lee's ruling could have a historic legal impact, ultimately resolving the age-old dilemma of what attorneys should do when they know their clients are lying.

Rubin, 63, a flamboyant and often controversial attorney from Miami, found himself on the horns of that dilemma in 1985 when an accused killer, Russell Sanborn, offered a new alibi and witnesses who would support it days before his trial was to begin.

Rubin concluded Sanborn was lying when one witness confided she had been bribed to corroborate the alibi and another, Sanborn's mother, confessed she had driven her son to the murder scene.

Citing ethical considerations, Rubin asked the presiding judge, Sidney Shapiro of Dade County, to allow him to withdraw from the case. When Shapiro refused and ordered him to proceed with the trial, Rubin appealed. The 3rd District Court of Appeal upheld Shapiro and suggested that Rubin allow Sanborn to offer his testimony in narrative form without answering questions from Rubin.

When Rubin again refused, Shapiro found him in contempt of court and sent him to jail for 30 days.

In often emotional testimony that once brought him to the verge of tears, Rubin argued Friday that the oath of admission to the Bar -- as well as Bar rules, Florida statutes and case law -- prohibited him from obeying Shapiro's order and participating in the presentation of perjured testimony. He said the narrative testimony formula offered by the appeal court has been rejected by the American Bar Association and by The Florida Bar's Board of Governors.

Rubin expressed dismay that the Bar chose to pursue charges against him rather than applaud his actions.

''I thought I was doing something for the lawyers by going to jail. And how did they repay me? Here I am.''

Bar counsel Paul Gross countered that disobeying a court order, not perjury, was the issue.

He argued that if other attorneys followed Rubin's example and decided which court orders to obey, there would be anarchy in the legal system.

''The bottom line is no matter how noble Mr. Rubin's motives may have been, he's not above the law,'' Gross said.